"There is another, but separate point which requires discussion. One of the fundamental issues in this type of case is determination of the class of persons whose peril causes the mental distress. In other words, what was the relationship of the plaintiff to the victim? That question should pose no issue here because the plaintiffs were father and brother of the decedent.If recovery is allowed, this relationship is a protected one. 3 F. Harper, F. James & O. Gray, Torts § 18.4, at 690 (2d ed.1986).

Nonetheless, the majority causes substantial confusion for future cases. The majority haphazardly refers to the relationship as involving a “family member,” a “loved one,” a “relative,” and the “victim.” The majority provides no guidance as to the legal meaning of these imprecise and unnecessary categories. I assume that the majority's loose language will, someday, require us to decide whether a pet *267 is a family member or a loved one. There is a split of authority on that one. Roman v. Carroll, 127 Ariz. 398, 621 P.2d 307 (1980) holds no; Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981) holds yes."

2 comments:

Your post raises an interesting question. I did a quick Westlaw search and found a case from Arizona, Hislop v. Salt River Project Agr. Imp. and Power Dist., 5 P.3d 267 (Ariz. 2000), in which the majority limited the class of plaintiffs who can bring such a claim to those related by blood or marriage. The dissent in that case wrote as follows:

"Anyone living in a non-traditional relationship will be denied the chance to recover emotional distress damages, while those living together with benefit of marriage will not suffer such prejudice. It is a fact of life that many gay men and lesbian women have partners with whom they have lived for decades and shared a close, loving relationship. These individuals will be denied the right to even claim damages for emotional distress for witnessing injury or death to their partner for no other reason than that they are not legally married, a status they cannot prevent. The closeness of two people should be judged by the quality and intimacy of the relationship, not by whether there is a blood relationship or whether a document has been filed at the court house. A segment of our population should not be denied legal redress simply because of their lifestyle."

Now here is an interesting question for those litigating the issue in Washington: what effect does the Domestic Partnership law have on this question? In other words, the act specifies that domestic partners can sue for one another's wrongful death. Does the specification of that particular right by implication mean that they cannot sue for negligent infliction of emotional distress? Or am I correct to say that wrongful death actions are statutory claims, making it necessary for the legislature to state that DP's have the right to sue, while negligent infliction, as a common law claim, is something that the courts can decide using their common law reasoning powers?

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